The reports were issued this week by the Independent National Security Legislation Monitor and the Council of Australian Governments.
The Citizen details key points of difference.
CONTROL ORDERS
What are they?
A control order is an order issued by the Australian Federal Police against a person that may be involved in some way with a terrorist act or has trained with a terrorist organisation.
Control orders can restrict where a person may go, who they can communicate or associate with and what activities they can carry out, including work.
It can also prohibit them from owning or using certain things, or accessing certain forms of technology, including the Internet.
People who are the subject of a control order might be required to abide by a curfew and/or wear a tracking device, as well as regularly report to police.
An order can only be issued with the consent of the attorney-general.
Controversy has surrounded control orders, particularly regarding the status of the evidence that has led to the order being issued, which the subject of the order – or their legal representative – may not be entitled to access. The use of control orders survived a constitutional challenge in 2007.
What is being recommended?
The Independent Monitor’s 2012 annual report recommends that control orders be repealed because they are “not effective, not appropriate and not necessary”.
Instead, they should be replaced by similar powers relating only to individuals convicted of terrorist acts who are likely to represent a threat once their sentences have been served.
The COAG Review of Counter-Terrorism Legislation differs in its conclusions. It suggests that control orders should be retained, but with additional safeguards.
These would include:
• The requirement that an Australian Federal Police officer seeking an interim order “considers on reasonable grounds that the person has provided training, or received training from, a listed terrorist organisation”.
• The recognition that prosecution is the preferred approach, and control orders should only be issued as a last resort.
• The establishment of a nationwide system of ‘special advocates’, made up of security-cleared barristers and solicitors, to participate in any closed material procedures relating to control orders.
• The subject of a control order being given “sufficient information about the allegations against him or her to enable effective [legal] instructions to be given in relation to those allegations”. The subject should also be given the necessary information regarding their right of appeal and review.
• The prohibitions or restrictions contained in a control order not constituting a relocation order under any circumstances.
• That no curfew as part of a control order be longer than 10 hours per day.
• That, other than in exceptional circumstances, any restrictions must permit one mobile telephone, one landline and one computer with access to the Internet.
• No restrictions on a person’s liberty, privacy or freedom of movement be greater than necessary.
• The empowering of the Commonwealth Ombudsman to provide general oversight of interim and confirmed control orders.
PREVENTATIVE DETENTION ORDERS
What are they?
A preventative detention order allows the police to detain an individual where it is believed there is an imminent threat of a terrorist attack and that issuing the order might prevent the attack. Or, where an attack has already occurred, it is believed that the order will prevent vital information from being destroyed.
Under these orders, a person can be held for up to 14 days without charge.
No preventative detention orders have been issued in Australia, and Bret Walker, SC, who heads the Independent Monitor, noted that there was “no enthusiastic support for the provisions” in the submissions that he received in the lead-up to issuing his report.
What is being recommended?
Both the Independent Monitor and COAG reports recommend that preventative detention orders be abolished, claiming that they are not effective, not appropriate and not necessary, and that making them so would require a complete restructuring of commonwealth and state laws.
QUESTIONING WARRANTS
What are they?
A questioning warrant gives the Australian Security Intelligence Organisation the power to question an individual for up to 24 hours, or 48 hours if they require an interpreter.
A person brought for questioning under this provision must answer all of the questions permitted by the warrant. They must also surrender their passport, not leave Australia without permission, not tell others while the warrant is in force that they are being questioned by ASIO unless expressly permitted and must not tell others about the operational nature of the warrant, unless permitted, for two years.
The penalty for not complying is five years’ jail. Sixteen questioning warrants have been issued since their introduction in 2003, but only one since 2006.
What is being recommended?
This issue of questioning warrants is dealt with exclusively by the Independent Monitor’s report, which argues they are “sufficiently effective to be appropriate, and in a relevant sense necessary”, rejecting the criticism that they are an unjust infringement on liberty.
Furthermore, the report argues that with some amendment “they might be more readily available than the legislation currently provides”.
It suggests that:
• The ‘last resort’ requirement be repealed and replaced with a pre-requisite that a questioning warrant application is reasonable within the circumstances.
• Time extensions granted due to the use of an interpreter be no more than could be reasonably attributed to the use of an interpreter.
• The requirement in the ASIO Act that there should be no alternative way of taking an individual into custody be removed.
• The length of imprisonment for contraventions of questioning warrant safeguards be at parity with offences against questioning warrant secrecy provisions.
• The length of imprisonment for contraventions of questioning warrant secrecy obligations be shortened from five to two years.
• The offence of failing to produce a thing or record should include willfully destroying or tampering with a thing or record.
• A person charged with a criminal offence should not be able to be questioned under a questioning warrant until after their trial.
• ASIO should provide additional guidance and information to those officers involved in the preparation of questioning warrant reports to ensure the reports include a full assessment of the overall intelligence value of the information obtained through the use of the warrants.
QUESTIONING AND DETENTION WARRANTS
What are they?
Questioning and detention warrants are similar to questioning warrants, but allow ASIO to detain a subject without charge for up to 168 hours with the same secrecy conditions.
What is being recommended?
The Independent Monitor’s report found that questioning and detention warrants were an unnecessary extension of questioning warrants, but noted that detention for the purposes of questioning was not in itself wrong.
Rather, it argued that the questioning warrant section of the ASIO Act be beefed up to include provisions for detention in circumstances where it is believed the person being questioned may refuse to comply with the warrant, tip off other suspects or destroy evidence.
Ultimately, it recommends repealing the entire sub-section of the act related to this category of warrants, which includes the controversial power to hold suspects for up to 168 hours.
DEFINITION OF TERRORISM
What is it?
An international standard definition of terrorism remains elusive, and as such most countries have produced their own definitions.
Australia’s definition of terrorism is found in Part 5.3, section 100.1 of the Criminal CodeAct 1995, and comprehensively seeks to define the act – or threat of an act – of terrorism in terms of motivation, reasoning and the effect or intended effect of the terrorist activity, while seeking to exclude legitimate protest or other actions that do not intend to cause harm.
What is being recommended?
Both reports recommend tweaking the definitions of terrorism in the Criminal Code Act 1995 to include hostage-taking, while excluding acts committed by forces governed by international law during conflict, with the COAG report recommending specific immunity for Australian forces.
The COAG report also suggests the definition of harm caused by a terrorist act should include psychological, and that additional offences for “threatening a terrorist act” and “hoax threats” be created.
The reports differ on the requirement of “motivation” to be proved.
The Independent Monitor recommends removing this requirement, claiming it is not effective, not appropriate and not necessary, and potentially counter-productive. The COAG report on the other hand, finds no such need.
HOW THE CRIMINAL CODE APPLIES
What is it?
Part 5.3 of the Criminal Code 1995 deals with criminal offences related to terrorism. Here, Australia’s counter-terrorism laws deal with what constitutes terrorist acts, terrorist organisations, financing terrorism and urging terrorist violence, designates them as criminal offences and determines penalties.
What is being recommended?
The COAG review of the criminal code in relation to terrorist offences proposes a number of changes.
It advocates repealing the offences of:
• Associating with a terrorist organisation;
• Providing funds to an individual terrorist; and
• Training or receiving training from an organisation that advocates – but which is not directly involved in – carrying out terrorism.
It also suggests the “financing terrorism” section of the act should be repealed and replaced with a graded continuum of responses that reflects a person’s culpability in raising funds for a terrorist.
The penalty for knowingly funding a terrorist organisation should be reduced to 15 years, it suggests, and reckless funding should be reduced to 10 years. The review also suggests that thedefinition of “advocate” in terms of organisations should omit the sub-section that includes those who praise an attack, limiting the definition of an organisation that advocates terrorism to one that directly or indirectly counsels or provides instructions for the doing of a terrorist act.